Moran v Moran & 4 Ors

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

No: 21360/95 Kristina Moran v Douglas John Moran & 4 Ors Reasons for judgment

1 HIS HONOUR: The plaintiff, Kristina Moran, is the widow of Brendan Moran, who took his own life on 13 February 1995. The first three defendants are members of Mr Moran's family and the fourth and fifth defendants, described loosely, are family companies. The plaintiff has brought proceedings which, as far as I am aware, are without precedent in this Court. Put shortly, she alleges that her husband was driven to his death by the behaviour of the first three defendants, both in their personal relationship with him and in their dealings with him as members of the companies. She has commenced action under the Compensation to Relatives Act 1897, on her own behalf and on behalf of the two children of the marriage. She also sues in her own right for nervous shock as a result of the suicide, but that action is not the subject of the application with which I must deal. 2 The plaintiff has requested a jury, pursuant to s86(1) of the Supreme Court Act 1970, for the trial of the proceedings under the Compensation to Relatives Act. The defendants seek an order under s89(1) of the Supreme Court Act that all issues in those proceedings be tried without a jury. That application is on two bases. Firstly, it is said that publicity in recent years which is adverse to them would make it unlikely that a jury could consider the matter impartially. Secondly, it is said that the case turns upon conflicting expert evidence of such detail and complexity that it could not practicably be resolved by a jury. 3 I approach the application on the basis that s86 confers a prima facie entitlement to trial by jury upon the party requesting it, and that another party seeking an order under s89 that the jury be dispensed with bears the burden of establishing why that discretion should be exercised in his or her favour: Pambula District Hospital v Herriman (1988) 14 NSWLR 387, per Kirby P at 399, 405.

Publicity 4 I received in evidence copies of a considerable number of newspaper and magazine articles, together with brief summaries of some television and radio broadcasts, relating to the parties. I have read that material carefully. To set it out in any detail would only compound the problem of which the defendants complain, as this judgment may itself be the subject of publicity. It is sufficient to say that some of the material deals with the proceedings in this Court and the relationship between the first three defendants, on the one hand and the plaintiff and her late husband, on the other. Other material is concerned with the background, political connections and business dealings of the first defendant. The publicity spans a period between 1995 and 1999, most of it in 1997. 5 There is no doubt that much of this material is adverse to the defendants. Indeed, as a result of it, members of the defendants' family received anonymous telephone calls, faxes and letters of an uncomplimentary, even abusive, kind. I have also received evidence of some of those communications. The question, however, is whether the prejudicial effect of the publicity is such that the case could not fairly be tried by a jury. 6 Criminal trials with a jury in the wake of extensive publicity adverse to the accused are by no means uncommon. In The Queen v Glennon (1992) 173 CLR 592, Mason CJ and Toohey J observed (at 603): The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. … in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them. 7 In R v Yuill (1993) 69 ACrim R 450, Kirby ACJ said (at 453-4): Courts will assume that jurors, properly instructed, will accept and conform to the direction of the trial judge to decide the case solely on the evidence placed before them in the court … There is an increasing body of judicial opinion, lately expressed, to the effect that whatever pre-trial publicity exists, jurors, when they take on the solemn responsibility of the performance of their duties in the courtroom, differentiate between gossip, rumour, news and opinion which they hear before the case and the evidence which they hear in the court in the trial for which they are empanelled.

The same approach was adopted in R v Milat (CCA, unreported 26 February 1998) per Gleeson CJ at p44 ff, and R v Bell (CCA, unreported 8 October 1998). 8 True it is that a judge has no power to dispense with trial by jury in a criminal case (although the case may be tried by judge alone if the accused chooses that mode of trial and the Crown consents, in accordance with s32 of the Criminal Procedure Act 1986). Nevertheless, the observations in the cases to which I have referred are of general application, and it is appropriate to have regard to them in exercising the discretion under s89. Whether any of the jurors in the present proceedings would remember the publicity about the defendants cannot be known, but there is an obvious risk that one or more of them may. However, there is no reason to doubt that each of the jurors would heed a direction to put that material out of his or her mind and to decide the case on the evidence. I would not direct a trial without jury on this basis.

Expert evidence 9 Obviously, the first issue in the proceedings will be whether the defendants engaged in the conduct alleged to have led to the deceased's suicide. However, the plaintiff must also establish his mental state at the relevant time and prove that it was induced by that conduct. On those matters expert evidence looms large. I have been supplied with copies of a number of psychiatric reports, obtained for the plaintiff and the defendants. They deal with factors giving rise to the suicide and the plaintiff's reaction to the death but, for present purposes, I am concerned only with the former. 10 As one would expect, the authors of the reports arrive at different views about the mental state of the deceased and about the extent, if at all, to which it could be said to stem from the defendants' alleged behaviour rather than other stressors in his life. While the circumstances in which this evidence has been sought are unusual, there is nothing unfamiliar about the assessment of it which a jury would need to undertake. From time to time, juries are required to arrive at a decision in the face of conflicting psychiatric evidence. Particularly is this so in the criminal jurisdiction, where defences of mental illness or diminished responsibility are not uncommon. There is no reason why a jury in the present case, guided by the burden of proof, could not make a realistic assessment of the conflicting expert opinions in the light of the facts and circumstances which they find established. 11 On the question of damages, the plaintiff and the defendants have obtained accountants' reports. Both reports are lengthy and contain detailed analyses of the plaintiff's claim for economic loss. Again, juries are sometimes called upon to deal with evidence of this kind. It is usually not necessary for them to master all the material in voluminous reports, as the author of each report is normally "called to state its general effect or result": see the observations of Hunt J (as he then was) in NRMA Insurance Limited v Flanagan [1982] 1 NSWLR 585 at 600. 12 I am not persuaded that the expert evidence on the present case is of such volume or complexity that it would be impracticable for a jury to deal with it. I would not dispense with the jury on this basis either.

Conclusion 13 Even viewed in combination, the two grounds advanced in support of this application do not satisfy me that the case should be tried without a jury. The application under s89 of the Act is refused. I shall hear the parties on costs.

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